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March 17, 2020

Should representatives of the people be involved in civic society?

Should magistrates and judges be hermetically sealed from formal involvement in civic society? People have been disagreeing for years as to what judicial independence actually means and there is still no register of interests for judges and magistrates. There is a judicial conduct policy which is slightly vague – it says judges and magistrates can be involved in the management of educational, charitable and religious organisations and trusts but “care should be taken that it does not compromise judicial independence or put at risk the status or integrity of judicial office”. Judges and magistrates should not fund-raise for charities unless they are “supporting the work of the court”.

Charity involvement came to the fore in 1998 when Lord Hoffmann was one of the Law Lords presiding over a hearing on the extradition of General Pinochet. Amnesty International intervened in the case and Lord Hoffman did not declare either that he chaired the board of Amnesty International Charity Ltd, or that his wife had worked for the charity for many years. When this information came to light, Lord Hoffman claimed this had not affected his judgment at all. His colleagues disagreed on the basis justice has to be seen to be done. The case had to be reheard. It was clear that Lord Hoffmann should have declared a conflict of interest. But no-one disapproved of his staying involved with the charity.

More recently the involvement of Sir Paul Coleridge with the Marriage Foundation was also controversial. Sir Paul was a High Court judge and felt strongly that marriage needed to be championed. He had no problem setting up and being on the board of the Marriage Foundation (which initially was not a charity), but was reprimanded for publicly speaking and writing about the issue.

Transform Justice has recently become embroiled in this issue. In Summer 2019 we openly advertised to fill vacancies on our board. We recruited three excellent trustees, two of whom were serving magistrates. Both of them thought they should inform the judicial authorities of their appointment. One was told by the local legal adviser it was fine, the other got a very different reaction. The latter’s request was referred right up the ranks to the then Senior Presiding Judge who prevented the magistrate from taking up the trusteeship on the basis that the charity was too “political”. Both magistrates have now been advised by the judiciary against becoming trustees.

I am disappointed but also bewildered. Transform Justice is a charity registered with the Charity Commission, which abides by charity guidance. It works “for a fair, humane, open and effective justice system”, of course in a non political way. The charity Justice has a vision for “fair, accessible and efficient legal processes in which the individual’s rights are protected” – similar aims. Justice brings out brilliant reports on how the criminal justice system should be changed. It has at least three judges on its Council, which gives advice to the Board on challenging issues of the day.

There are many judges and magistrates on the boards of charities which advocate on criminal justice issues (on behalf of their beneficiaries). There are judges on the boards of grant making trusts, judges who are governors of private schools or who are MPs, Peers and local councillors. Most of those who combine politics with sitting as a judge are aligned to a particularly political party. There is a Labour peer who is also a JP who frequently opposes government criminal justice policy in parliamentary debates. So I’m confused as to why the line has been drawn at sitting on Transform Justice’s board. No trustee of Transform Justice is every obliged to speak publicly about the charity or to actively support our fundraising. So how does involvement with us compromise judicial independence in a different way to these other examples?

This incident illustrates that judicial independence is not clearly enough defined and guidance is applied inconsistently. We need clearer guidance and totally transparent processes. But this story also highlights the power lost by the magistracy to govern itself. Fifteen years ago, decisions like this would be made solely by magistrates, who come from and are rooted in communities. Isn’t one of the strengths of the magistracy that they are representatives of the people and, as such, are involved in civic life and society?

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